Insyxiengmay

MEMORANDUM *

We affirm the district court’s denial of Oloth Insyxiengmay’s habeas corpus petition.

First, there is no clearly established federal right, as determined by the Supreme Court, for a defendant to receive a lesser included offense instruction in a non-capital trial. See Solis v. Garcia, 219 F.3d 922, 928-29 (9th Cir.2000). Nor is Insyxiengmay entitled to relief on that claim under 28 U.S.C. § 2254 (d)(2). Although the state court failed to acknowledge some evidence that Insyxiengmay was not the shooter, its decision affirming the trial court’s refusal to instruct the jury on voluntary and involuntary manslaughter would have been the same even if it had done so. As Insyxiengmay concedes, the jury did not have to conclude that he was the shooter to convict him of first degree murder based on extreme indifference to human life. Moreover, the state court’s clerical error in referring to the statement “Let’s to [sic] get ‘em,” instead of the admissible statement “I’m going to get them, I’m going to get ‘em,’ ” —the former of which could not be lawfully admitted against Insyxiengmay under Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) — was…